Taking Another Look At The Constitutional Blueprint

In this year of the bicentennial of the Constitution, American Heritage asked a number of historians, authors, and public figures to address themselves to one or both of these questions:

1. What change would you like to see in the Constitution and why?

2. What article or clause of the Constitution is of particular significance to you—and in what historical, political, personal, or other connection?

From among the many answers, we’ve selected a variety of replies, all adding up to a provocative forum of opinions and passions.

I. Changes I Would Like to See

The Former Presidents Have Their Say

I would favor an amendment that would lengthen the term of members of the House of Representatives from two years to four years. Elections to the House should be staggered so that half the seats would be up every two years.

To me the most significant amendment to the Constitution is the Nineteenth Amendment, which extended the right to vote to women. Though not a feminist by today’s standards, my mother was vitally interested in political affairs, and from my early days onward it has always seemed to me both important and appropriate for women to have as active a say in public issues as men.

-Richard M. Nixon President, 1969–74.

I do not see any overwhelming current need to change the United States Constitution; although, I would favor the repeal of the Twenty-second Amendment that imposes a two-term limitation on a President’s service. In my judgment the American people can be trusted as to the length of service of a President and should not be constrained by an arbitrary limit.

As the first individual to be nominated by a President and approved for Vice-Président by the House and Senate under the Twenty-fifth Amendment, I have a very personal relationship to that amendment. The Twenty-fifth Amendment, in spite of my personal involvement, was a most important improvement in our Constitution because it provided a badly needed process by which a vice-presidential vacancy could be filled. It also provides additional, very constructive provisions relating to procedures if a President is unable to perform his duties. The Constitution prior to the Twenty-fifth Amendment was seriously deficient in that a vice-presidential vacancy for any reason could not be filled between elections, and there was no established procedure in the critical event that a President was unable to carry out his responsibilities. Both of these deficiencies were remedied by the Twenty-fifth Amendment.

-Gerald R. Ford President, 1974–77.

Changes I would like to see in the Constitution:

1. Change treaty ratification to not more than a majority of the Senate.

2. Elect Presidents for one six- or seven-year term.

-Jimmy Carter President, 1977–81.

The Question of Amendments

We don’t need a new amendment to the Constitution and there’s nothing wrong with the document we have. What we do need is a national leadership that has some faint notion of what the Constitution is all about.

I would like to change Article V to read that whenever the people by majority vote in a state election propose a constitutional amendment, it shall be put on the ballot of all the state elections at the earliest possible moment and that, when passed by the majority of the states, such an amendment shall be valid to all intents and purposes as part of this Constitution.

A very small number of voters in the United States (all of them white and male) gave away the right of succeeding generations to modify their basic governmental document. As it now stands the majority of the people in the thirteen least populated states (probably no more than 10 percent of our total population) can block the will of the rest of the nation. Why is this permitted? Because of our veneration of the Constitution and the American ideology that promotes a fear of government rather than a faith in empowering the will of the people. To the criticism that such an easy amending process would eliminate the need for a constitution determining how power shall be allocated, I answer that this assumes that American voters cannot discriminate between the powers they wish limited or given in a fundamental constitution and their legislative preferences. Our Constitution favors the liberty of the private realm where informal power reigns. There is much to be said for that liberty, but it is by no means the loftiest liberty that people can aspire to, one in which the common good is seen as incorporating the nurturing of all people whether they be privileged or not.

I have often tried to get students to entertain the possibility of having a more democratic form of government, and I find that by the time they are eighteen, they have already imbibed the fear of government power that animated the Founders. We have a liberal government in which the distribution of formal power is arrived at by technically democratic elections. We have very little substantive democracy in my opinion.

-Joyce Appleby Professor of History, University of California, Los Angeles.

I would like to see the amendment article itself amended. Omitting the Bill of Rights, which is properly considered part of the Constitution, the frame of government has been amended only sixteen times, and two of these amendments (XVIII and XXI) cancel each other. The extreme difficulty of amending the Constitution has been unhealthy for the nation, sapping the vigor of constitutional democracy and causing necessary changes and adaptations to occur along the tortuous pathways of the “living” Constitution.

Two amendments should be made to Article V. First, the authority of a national convention called to amend the Constitution on the application of two-thirds of the states should be limited to the specifically proposed amendment or amendments. This would dispose of an ambiguity that has stood in the way of amendment by convention. Second, amendments should become part of the Constitution upon ratification by two-thirds of the legislatures of the states or of conventions therein. This reduction of the three-fourths requirement would facilitate the process without opening the door to illconsidered and ill-advised amendments.

The old Constitution was an admirable document; contrary to Macaulay’s criticism, it was both sail and anchor, establishing the legal principles of citizens’ rights and the powers of their government. That is why, in my opinion, all of its amendments after the Twelfth (1804: the trial period was over) have been unnecessary (except perhaps the Lame Duck one—the Twentieth, 1933). The emancipation of the slaves, the citizenship rights of Negroes, the taxation of individuals, the popular election of senators, the right of women to vote, the restriction of alcohol and the restoration thereof, the limitation of the Presidency to two terms, the extension of the right to vote for eighteen-year-olds, et cetera—all of these could have been achieved and, in most cases, were achieved without amendments to the old Constitution that now looks like a lopsided Christmas tree, infested by brummagem ornaments, some of them outright silly—as, for example, the last amendment, “extending” the vote to eighteen-year-olds (1971: just after Woodstock).

I am convinced, for example, that abortion is murder; but I think it is ridiculous to believe that abortion would be curtailed, let alone stopped, by an anti-abortion amendment to the Constitution. We might as well enact an amendment prohibiting murder. When the amendment prohibiting lying is adopted, we will have become the people of liars.

-John Lukacs Professor of History, Chestnut Hill College.

No changes. Interpret and reinterpret, but don’t rewrite.

-Patricia K. Bonomi Professor of History, New York University.

Increase the Term of Representatives

Given the preposterous expense, the corrupting impact of campaign financing, and the diversionary effects of elections every two years, I would adopt a system of quadrennial elections for the House of Representatives. This scheme might occasionally provide Presidents with something resembling a majority in the Congress if House elections were held in presidential election years. Of course, quadrennial elections for the House would make it necessary to adjust Senate terms (two classes, eight years each) to eliminate all off-year elections.

-Gerhard Casper Dean, University of Chicago Law School.

Repeal the Two-Term Presidential Limit

I would repeal the Twenty-second Amendment, which limits an elected President to two terms in office. It was largely conceived, in spite, by the Roosevelt-haters of the 1940s. They couldn’t lay a glove on FDR when he was alive; so they nailed him when he was dead. Ironically, so far it is the perpetrators who have suffered. They would have been able to reelect Elsenhower in 1960. But it is the whole nation that suffers in the long run. In a real crisis we want the best man possible, and that man just might be a two-term resident of 1600 Pennsylvania Avenue.

-Walter Lord Historian. Author of, most recently, The Night Lives On.

What an oddity that we limit the President to two terms but do not limit the tenure of anyone else in the federal government! Supreme Court Justices are appointed for life. We honor representatives and senators who have somehow pleased their constituents enough to last thirty, even forty years on the Hill. Why should we applaud congressional octogenarians as they lead the way in making mandatory retirement at any age illegal yet tolerate a constitutional provision that could involuntarily retire a middle-aged President whom the American people might want to reelect?

The possibility of continuity in the executive office is an important source of stability in a democratic state, which the Founding Fathers understood. The strange machinery they created for electing a President in the first place might well be obsolete, but on a President’s reelectability the Founding Fathers were right. Repeal the Twenty-second Amendment.

However valid in 1787 the concerns that induced the Constitutional Convention to limit presidential eligibility to “a natural born Citizen...,” time and the unfolding of American history have deprived the rule of all meaning and dignity.

“My fellow immigrants,” was Franklin D. Roosevelt’s salute in 1938 to the Daughters of the American Revolution. He spoke figuratively; yet his jest bore the truth. We are, if not a nation of refugees, a people to whom place of origin has come, more and more, to carry only anecdotal significance.

I have no candidate in mind—although the clause has rendered ineligible, among others, such politically diverse public figures as Carl Schurz, Felix Frankfurter, and Henry Luce.

Nor does elimination of the bar seem worth the discombobulation of a full-scale amendment. But the next time we undertake a substantial adjustment of our national charter, perhaps we could add, as what the legislators call an outside election, a sentence or two eliminating the restriction. That would be a fine way to show that we recognize our collective origin.

-Hiller B. Zobel Associate Justice, Massachusetts Superior Court.

My answer is obvious: That clause that excludes Canadians and others of foreign birth from the Presidency and, possibly, from the Vice-Presidency as well. My whole life was altered, as also, quite clearly, was the history of the Republic. Henry Kissinger, I cannot doubt, vociferously agrees.

I would amend the Constitution to give the President one term of six years—no more. Why? No Watergate, for one thing. As Andrew Jackson contended—and it was he, after all, who proposed such an amendment during his own Presidency —it would reduce the likelihood of corruption; the President wouldn’t spend most of his first term trying to get elected for a second. It is such a waste of time, money, and energy. And most of them, fortunately, don’t succeed in winning a second term anyway.

-Robert V. Remini Professor of History, University of Illinois at Chicago. Author of Andrew Jackson and the Course of American Democracy.

Tame the Supreme Court

Among the especially significant provisions of the U.S. Constitution is one that many politicians today prefer to ignore: Article III, Section 2. It is precisely this provision that the late Sen. Sam J. Ervin, Jr., and I repeatedly emphasized in terms of its relevance and importance to this nation and the American people.

Article III, Section 2, is the fundamental key for congressional efforts to restrain federal judges who distort rather than enforce the Constitution.

Consider the very clear intent of our Founding Fathers when they drafted and approved Article III, Section 2: “...the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

I have emphasized the last twelve words of the provision because it is fashionable in some political circles today to pretend that Congress is somehow engaging in “court-stripping” if and when Congress proposes to exercise its very clear authority and duty conferred by this provision of the Constitution.

Obviously, the importance of this provision is that it empowers Congress to take cases away from the Supreme Court and leave them to the states to decide. For example, the Supreme Court—unconstitutionally—struck down the anti-abortion laws with the Roe v. Wade decision in 1973. Under Article III, Section 2, Congress could remove Supreme Court jurisdiction over abortion cases and thereby allow the states to enforce their traditional anti-abortion laws.

Through similar legislative enactments Congress could restore voluntary school prayer and severely limit forced school busing. There are other areas in which Congress could act as well, reining in activist federal judges more bent on imposing their own views than in applying the law.

This approach is fully consistent with what the framers had in mind when they drafted Article III, Section 2. In The Federalist, No. 80, Alexander Hamilton wrote: “If some partial inconveniences should appear to be connected with the incorporation of any of them [judicial powers] into the plan, it ought to be recollected that the national legislature will have ample authority to make such exceptions and to prescribe such regulations as will be calculated to obviate or remove these inconveniences.”

John Marshall—later Chief Justice of the United States—said at the Virginia ratifying convention: “Congress is empowered to make exceptions to the appellate jurisdiction, as to law and fact, of the Supreme Court. These exceptions certainly go as far as the legislature may think proper for the interest and liberty of the people.”

Senator Ervin and I were convinced long ago that the interest and liberty of the American people have been put in jeopardy by modern federal judges in any number of areas. Likewise it is clear that the framers knew what they were doing when they empowered Congress to act to curb judicial usurpations. The question pending for future Congresses is whether they will have the courage to act.

-Jesse Helms United States Senator, North Carolina.

I would like to see some restraint placed upon the policymaking power arrogated by the United States Supreme Court in particular and the American judiciary in general. This change cannot be achieved by formal amendment. What is needed to prevent further judicial subversion of the principle of self-government is strong public pressure from an informed citizenry and legislative reassertion of a coordinate right and duty to interpret the Constitution. My views, I should add, are substantially those expressed by Abraham Lincoln in his first inaugural address.

-Don E. Fehrenbacher William R. Coe Professor of American History Emeritus, Stanford University.

It had my druthers, I think I would like to see a change in Article III defining the judicial power of the United States and most specifically in Section 2, the clauses pertaining to controversies between two or more states and most particularly between a state and citizens of another state, and between citizens of different states, and between citizens of the same state claiming lands and grants of different states. In all these instances such cases have to begin in a federal district court. This situation works against individuals, small businesses, and associations—particularly in the Western states—involved in litigation. It means that they might have to travel hundreds or more miles, establish residence, hire legal counsel other than their local attorney, et cetera, in order to engage in expensive litigation that might go on to a higher court, which means further traveling and further expenses.

In short, taking a case through the federal court system could bankrupt all but the wealthiest of individuals. If the Constitution could be amended to allow these types of federal cases to be tried in state courts, where evidence and circumstances were available and applicable, the change could actually enhance the functioning of our judicial system.

The extraordinary scope of the policy-making power claimed by the judicial branch in recent decades constitutes one of the most serious political and constitutional problems facing the country today. In their exercise of power the courts have far exceeded the limited political role intended by the framers of the Constitution. In a fundamental sense the problem is constitutional in nature, but it is not necessary to pass a constitutional amendment to deal with it. Congress can and ought to exercise its clearly delegated power to regulate the appellate jurisdiction of the Supreme Court and of inferior federal courts. In this way Congress could help restore the courts to their proper constitutional purpose of settling cases and controversies arising under the Constitution, laws, and treaties of the United States.

-Herman Belz Professor of Constitutional History, University of Maryland.

Make English Official

I should like to see an amendment stating that American English is the official language of the United States, the only one to be used in the transaction of all public affairs, including voting. My reasons are as follows:

Language is one of the fundamental bonds by which a people is held together. It is essential to the maintenance of internal peace and external unity. In a democracy particularly, it permits debate in which all can take part, understand what and whom they vote for, reach fair and fruitful decisions.

Making American English official deprives no one of any right to use and enjoy the elements of his or her ethnic heritage; and for those same individuals, the use of the official language opens the way to the highest positions in the land.

In countries where linguistic unity has broken down, hostility, prejudice, and resentment persist and even worsen, despite the adoption of two official languages. With our cultural pluralism, how many languages would have to become official after a second one had been chosen?

-Jacques Barzun Author and past President of the American Academy and Institute of Arts and Letters.

Limit Election Expenses

The Constitution provides that each House shall be the judge of its own elections and of the qualifications of its own members. Any candidate for membership in either House who himself, or through his supporters, spends more than a specifically limited number of dollars on his election should be considered disqualified for membership in either House.

I would favor a constitutional amendment permitting the President not only to choose members of his cabinet or top executive officers from the Senate or House, but allowing those appointees to retain their seats in Congress. This not only would draw the President and Congress into somewhat closer teamwork, but would serve as a stabilizing force in the executive and an enhancement of executive leadership in Congress. I doubt that this change in itself would make much difference, and indeed, I doubt that the President would often choose top appointees from Congress, but at least it would be the start of a desirable change in the Constitution.

In insulating the President from the hurly-burly of Congress, the Founding Fathers inadvertently also made him irresponsible. There is no institutional arrangement whereby the President can be held accountable, on a regular basis, for his actions. The press conference has evolved to fill that gap. But it is a pathetic thing, easily manipulated by an imperious or skillful President. The media, often obsequious and usually intimidated, can only ask questions: they cannot engage in debate. The President, if he wishes, can lock himself up for months and never explain his actions, even if they involve, as they have, leading the country into war, destroying its economy, or overturning its security arrangements.

The parliamentary system has numerous devices for making the executive responsible to the legislature. Most cannot be easily applied to our system. But one can. Every week the British prime minister must appear before Parliament to justify his or her actions in a rough-and-tumble questionand-answer session. The legislators, unlike media reporters, are not afraid of appearing rude or of losing “access.” They can ask the questions and demand the answers that the public has a right to know.

I propose that the Constitution be amended to require the President to appear before a joint session of Congress no less than once a month to answer questions posed to him by the legislature. While this might not lead to better policies, it could at least help counter the corruption of the system resulting from government by public relations.

-Ronald Steel Author of Walter Lippmann and the American Century.

I would like to see the Presidency scaled down, or better yet, our system transformed into a ministerial form of government. The presidential form of government, admittedly an American innovation, has outlived its usefulness in a modern democratic polity. Its deliberate separation from political parties and from Congress lies at the root of our parties’ present inability to make effective use of government in addressing economic and social problems.

Now that Congress has allowed television cameras through its portals, an amendment must be added to the Constitution providing formal access to the floor of the Senate for the Secretary of State, the Secretary of the Treasury, the Secretary of Defense, and the Attorney General. The purpose would be periodically to permit before the public a formal presentation and defense of presidential policies, followed by discussion and debate from the floor. The effect would be to discipline in a salutary way the principal voices of the executive branch and produce a no less desirable disciplining of the Senate as a whole, whose members habitually use the media to criticize administration policies without sufficient political cost or risk to themselves. The Sunday interview programs on the television networks do not answer the nation’s need for arguing out vital issues. My proposed amendment would institutionalize interpellation in the great body where it deserves to take place, and give the process the dignity it requires.

-Henry F. Graft Professor of History, Columbia University

Rethink the War Powers Clause

The change I would most like to see is not in the text of the Constitution but in the strict construction of the war powers clause (Article I, Section 8), which confers on Congress alone the power to declare war. Fidelity to the letter of this important constitutional provision might prevent unilateral executive decisions and actions that since the 1950s (and despite the War Powers Act of 1973) have allowed the President to initiate and to wage war without congressional approval.

Perhaps it is an impossible task, but I believe it would be very useful to try and clarify the so-called war powers—especially the power to “declare” war. The ability to commit United States forces in combat has proved to be a troublesome problem. The question had quite different dimensions in the eighteenth century, when months could pass before military engagements were communicated to the capital. With instant communications and the ability to control military engagements more precisely, the issue has new urgency. The 1973 War Powers Resolution has been treated cavalierly by Presidents and Congress alike, and it is perhaps a clumsy compromise. But it was a remedy for this gap in the Constitution; and I think another effort to deal with the situation is in order.

-Roger H. Davidson Senior Specialist in American Government and Public Administration, Congressional Research Service, Library of Congress.

Congress already has the power to raise armies, declare war, ratify treaties or to refuse to do so, but increasingly it abdicates its negative power when the flags are flying. The result is that strong Presidents are “imperial” and weak ones leave a vacuum of leadership. At the least I’d require the President to answer questions in Congress on a regular basis, and going on from there I’d set a time limit on executive agreements without congressional ratification, and I would most surely limit executive privilege to personnel matters. I know the arguments about the need for a unified and discreet leadership that only the executive can provide in war and diplomacy, but after years of foreign and military adventures led by autocratic dissemblers in the White House, I’m willing to risk a period of policy making by consensus among 535 careless talkers.

-Bernard A. Weisberger Historian and author.

Whose Right to Bear Arms?

I hope the Second Amendment (1791) could be rephrased or redefined. This amendment has been used falsely by the gun lobby and gun owners to justify the barely controlled purchase and retention of deadly weapons. My point is this: The so-called right to bear arms is not an absolute right. What must be clarified and emphasized is the first part of the sentence—that the only reason given in the Second Amendment for bearing arms is to sustain “a well regulated Militia, being necessary to the security of a free State.” Handguns, Saturday Night Specials, sawed-off shotguns, and all the other concealed weapons have nothing whatsoever to do with a militia or national security. They should be banned—under the very clear language of the Second Amendment.

-Herbert Mitgang Journalist and author of, most recently, the novel Get These Men Out of the Hot Sun.

Pass the Equal Rights Amendment

The single change needed is the Equal Rights Amendment. The Constitution is a moral testament of intentions as well as the guide for law, and therefore this assertion of equal rights is necessary.

-Marietta Tree City planner, former U.S. ambassador to the United Nations.

II. Parts I Like Best

The Preamble

Most significant for me is the preamble, and especially the beginning, which emphasizes “We the people of the United States...” rather than we the states. This was the real innovation, the basic change from the Articles of Confederation that made a national government effective. Making this change effective, Article VI says that “this Constitution, and the Laws of the United States which shall be made in Pursuance thereof...shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” The article goes on to require that all state officials must take an oath to support the U.S. Constitution. This article puts teeth in the Constitution, John A. Calhoun to the contrary notwithstanding. The great overall achievement was to establish a strong central government without destroying the independence of the states.

I first seriously encountered the Constitution when I was writing my biography of Benjamin Franklin. Watching and all but participating as Franklin struggled to persuade the Constitutional Convention to resolve the furious differences between large states and small states over representation in Congress was, for me, an unforgettable historical experience. That is why I find intensely moving those prosaic sections in Article I in which it is matter-of-factly stated that “representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers” and “the Senate of the United States shall be composed of two Senators from each State.” When you know the rage, the anguish, the doubts with which this seemingly obvious solution was reached, these word are the great object lesson of the genius of American politics: the art, sometimes gentle but more often painful, of compromise.

-Thomas Fleming Novelist and historian. Author of, most recently, The Spoils of War.

First Amendment

The First Amendment, insofar as it refers to freedom of speech and of the press, has had particular significance for my intellectual and scholarly life. Fifty years ago, under the influence of my Harvard mentor, the government professor Carl J. Friedrich, I had been examining the uses and abuses of freedom of speech and press by such demagogues as Huey Long and Father Coughlin. My first substantial scholarly effort was a study of defamation in cross-cultural perspective. At that time there was little interest in libel law in the United States; what might be called today’s “libel malpractice bar” did not exist. The general American attitude appeared to be—whether victims of abuse were public officials, public personages, or relatively private citizens—that Americans should be able to “take it”; the schoolyard rhyme “Sticks and stones may break my bones, but words can never hurt me” reflected that popular sentiment. I recall today a particularly striking American case in which a court held that it was not defamatory to call an American a Communist, because, even if the charge was false, it was legal to be a member of the Communist party. I asked myself whether, in the American grain, the law of defamation could be successfully used, inter alia, against anti-Semitic speech and writing. The First Amendment aside, I was inclined to conclude that suppression of even incendiary speech and writing would lead to covert expression no less harmful to popular debate, and admired the decision of the United States Supreme Court in Near v. Minnesota, which had rejected on First Amendment grounds an effort by the state to close down an anti-Semitic paper.

In that period of the 1930s, Fascists in Europe regularly went to court to seek damages for defamation against critical statements concerning them; Sir Oswald Mosley in Britain was one of the many examples. Civil and criminal penalties for defamation in European countries could be exploited by those Fascist leaders who wanted to put an end to democratic institutions. In the United States, the doctrines I lumped under the heading of “Fair Game and Fair Comment” and the social psychological attitude that tough guys fended for themselves and (the duel long since abolished) did not resort to the courts appeared to be standard American practice. Libel suits were rarely successful, punitive damages hardly ever awarded. I concluded that in more established and hierarchical societies it appeared legitimate to go to court to seek redress for libel and slander, but that it was almost “unAmerican” to do so here.

My research certainly did not prepare me for current attempts by the radical Right Wing not only to mobilize public opinion against supposedly liberal and Left-leaning men and women of the media, but also to turn to the courts as a political in terrorem device. The costs of litigation, especially with the discovery procedures that are a development of recent decades, have risen almost as astronomically as the costs of medical care. The mere prospect of a suit has become intimidating.

The decisions of the United States Supreme Court make the defense prove that they have not been reckless or malicious in providing an account that either cannot in all essentials be defended as true or would take enormous expense to defend on the grounds of truth in every particular statement. In 1985 the Boston Globe withstood a suit by a Right Wing Republican who claimed that his loss of a chance to become governor was the result of a series of defamatory articles; the journalist who had written the articles and the editors of the Globe spent many weeks in court as the eventually unsuccessful suit dragged on.

The threat to First Amendment freedoms would be less grave if there were not a general public animosity toward large institutions, among these being the major media. I am inclined to think that the media are a target of public antipathy in part because they bring the public items that it enjoys and yet of which it disapproves, whether these are titillating stories or interviews with the relatives of victims of terrorism. By catering to voyeurism, the press and television risk being seen as the equivalent of prostitutes, satisfying cravings of which the cravers disapprove. Furthermore, the men and women of the major national media are generally more liberal, more educated, more cosmopolitan, less xenophobic (although not markedly so in this last respect) than the population at large, and than the journalists and broadcasters of purely local media. Juries the country over, though with variations by locale, have been “trained” to think nothing of huge verdicts climbing into the millions. Liability insurance against suits for defamation has become almost prohibitively expensive.

Hence today I have a renewed interest in the First Amendment insofar as it refers to freedom of speech and press, and a renewed belief that public attitudes toward defamation are an important element in the protection of democracy against its enemies.

I should perhaps add that such an outlook does not lead me to become a First Amendment junkie with respect to journalists’ efforts to penetrate closed meetings of public bodies (negotiating sessions, for example) whose feasibility depends on secrecy, under the general claim of “the public’s right to know.” Sunshine, Open Meeting, and Freedom of Information Laws have had extremely mixed consequences, and I do not associate these with First Amendment freedoms, which do not automatically ensure the right of journalists to invade the privacy that members of society need if we are to trust one another, talk reasonably with one another, and reach compromises of conflicting interests even in the face of ideological outcry.

For me, the most important part of the Constitution is the First Amendment. Without it, I should have to be in another business.

Is there any other part of the Constitution that is more litigated? Perhaps so. But what other part attracts as much controversy? It is the neediest of amendments, constantly in need of judicial and political support.

-Frances FitzGerald Author of America Revised and, most recently, Cities on a Hill.

The article of greatest significance to me is the First Amendment—because it is the guarantee for us all of the freedom of expression that is as indispensable for the writer as it is imperative for a democratic society.

-Arthur Schlesinger, Jr. Albert Schweitzer Professor of the Humanities, City University of New York.

I am an absolutist on Freedom of the Press (and of assembly, speech, religion). I want to see no limitations there.

I would not protect freedom to cry fire in a crowded theater but I’d want a long, long look at the circumstances. I would not protect publication of troopship sailing, but here too I would prefer to err on the side of a dubious publication rather than put a possible shackle on an eccentric editor.

-Harrison E. Salisbury Journalist and author.

For me the choice has got to be the First Amendment, especially the freedom of speech clause. I know it is probably the most controversial, the most difficult to enforce, and one of the most evaded. But it has stood guard over American intellectual and academic freedom for a couple of centuries. If it falters or nods or is pushed aside occasionally, it is still good to know it is there.

I began my graduate work in history and entered the academic profession when McCarthyism, fed by postwar fear and hysteria, was at its height. Local and national legislators launched their attacks against the nation’s educational institutions and especially against their important function as free marketplaces of ideas. Among their targets were my undergraduate college and the university where I undertook my doctoral study, a fact that gave to their campaign of harassment a personal meaning. It was then that I first developed a keen appreciation for the First and Fifth Amendments to the Constitution, the former protecting freedom of speech on the campuses and the latter enabling those who were charged with harboring unpopular ideas to protect themselves against selfincrimination. Although these constitutional protections were flouted at that time with impunity and often proved of little comfort to the victims of the hysteria, they nevertheless were there! Their importance to the functioning of a free society remained; indeed, the passage of time has only vindicated their importance. For me, that early experience at a formative period in my life, on the threshold of my career as a historian, implanted a sensitivity toward academic freedom that has deepened over the years.

There’s nothing like a hard look at totalitarianism to make you praise the Lord for the First Amendment.

In China you can borrow a book from one of the few libraries only with written permission from your unit leader saying you need this particular book to help you do your job. No browsing, of course, and no borrowing outside your field. Even graduate students have limited access to university library books.

A media campaign in China promotes invention. Thomas Edison is a hero; schoolchildren learn his story. It’s hard to see how any inventors—or any other creative thinkers—can arise outside the free flow of information. You never know what you’ll need for an idea. The First Amendment not only guarantees our freedom, it also keeps us thinking up new ideas.

-Annie Dillard Author of Pilgrim at Tinker Creek and the forthcoming An American Childhood.

I like best Amendment I for obvious reasons: any writer would root for the right to free speech, especially in these days. In a lighter vein, it has been suggested that one might elect a combination of Amendments III and XXI. No doubt you have them both by heart, but let me refresh your memory. According to Amendment III, no soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, but in a manner to be prescribed by law. Amendment XXI, of course, repeals Prohibition. Think of the two together. If the government violates the first and you find your house full of soldiers, you can at least give them a drink.

-Emily Hahn Staff writer, The New Yorker Author of, most recently, The Islands.

To suppress the powerful efforts of religious chauvinists to despoil our freedom with their own special pieties—including such entering wedges as school prayer—let us spell out for them in large letters the absolute separation of church and state, since the injunction already implicit in the Constitution eludes them.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof....” Those sixteen words have done more than any phrase in any other national constitution to assure freedoms, start arguments, and provide for dynamic relations between the civil and religious realms. Given the variety of America’s interests and interpretations, it is hard to see how we can ever settle much of anything in respect to “church and state.” George Santayana once said that American liberties came partly from the rabid and pensive apostles of liberty who cared only for their own freedom and partly from the compromising spirit of Anglo-Saxon law. This amendment helps promote “free exercise” for those apostles. If we are a bit patient with each other, we citizens might also find that in the spirit of compromise the “no establishment” clause might help keep fanatic religious forces at bay while still encouraging the courtly spirit of “benevolent neutrality” toward religion.

-Martin E. Marty Fairfax M. Cone Distinguished Service Professor of the History of Modern Christianity, University of Chicago.

The Curse of the First Amendment Groupies

It is well to assume a conservative posture when it is suggested we tinker with the Constitution. It sure ain’t broke.

A more pressing need than any change in the text is a change in attitude toward an existing clause. I refer to the First Amendment, which needs to be treated with more respect—by its proponents.

The case has already been made against those who explicitly or at bottom oppose it and those who are hardly aware of it and those for whom freedom of expression means, in the end, only freedom for me. The amendment is fully as important as Justices Black, Brandeis, Brennan, Douglas, and Holmes have said. It is, as Justice Cardozo pointed out, “The matrix, the indispensable condition, of nearly every other form of freedom.” But it suffers from a curse of acolytes.

Buddha, an atheist who preached early deliverance, was made into a god by his followers, and his precepts thereby diminished. So also First Amendment groupies pervert due regard for free expression into unreasoning worship, and again the effects are bad, both in specific application of the amendment and in a more general consequence that may plausibly be anticipated.

The courts, of course, are influenced by what they read and hear. After scarcely having mentioned the First Amendment for the first 130 years of their mutual existence, the Supreme Court, beginning with ideas put forth by two dissenters of the 1920s (Holmes and Brandeis, naturally), only 40 years later fondly embraced the amendment. Invoking its provisions, the Court rewrote the law of libel. At about the same time, the Court extended the amendment’s protection to what had always been thought to be outside its scope—the impermissible writing about sex that went by the name obscenity. (A later bench declared it still outside, but defined obscenity in terms so narrow that its formulation was a mirror image of its predecessor, and the new law remained effectively untouched.) Thenceforth, against the charge of obscenity, all writing—the printed word in volume form—would be completely free, and other media of expression would be freer than they had been.

Meanwhile, on political expression, as distinguished from literature and art, less progress has been made. In the depth of what has come to be called the McCarthy period, the Supreme Court, in the course of affirming the conviction of certain Communists (not others), made clear that expression of ideas—even the idea that the government ought to be overthrown by violence—was not itself a crime, and under the First Amendment could not be made a crime. Since, then, however, the Court has been timid in the application of the amendment where the opposing argument is that national security may be impaired. The Court revealed this timidity in the Snepp and Marchetti decisions, and in the Morrison case a trial court allowed a conviction under the espionage acts for the publication of an article, thus excising from the definition of spy its prime adjective—clandestine.

On nonsecurity matters, however, the First Amendment has been unmercifully enlarged. In the obscenity field, we hear arguments from the “absolutists,” people who say the proper interpretation of the amendment is that there can be no suppression whatever. Those who take the absolute view—the one large instance of irrationality on the part of the generally rational and lucid Hugo Black—must close their eyes to plain and never-questioned aspects of the law. Slander and libel—false statements harmful to reputation —may lead to the payment of damages, a possibility that inhibits the speaker or writer. A conscious misrepresentation on which another person relies, and as a result of his reliance suffers, is fraud; the law holds the liar responsible and, as with defamation, the prospect of paying damages is a restraint. Fraud also brings criminal penalties—under false-advertising statutes, for instance, or under the Securities Act. All these things are speech or press.

The absolute view fails in the obscenity field as elsewhere. The most liberal of our Justices have recognized that exceptions should be made where what is felt to be offensive is forced upon a captive audience, where public displays affect the ambience of a neighborhood, and where children are concerned. Here the views of those who are just wild about the First Amendment have not affected the courts. The unwarranted and dangerous extensions of the First Amendment lie elsewhere, in commercial advertising and in the voting process.

Going against an earlier decision that it weakly sought to distinguish, the Supreme Court holds that the speech and press to which the amendment is addressed include commercial advertising, an ugly distortion of a guarantee whose beginnings had to do with liberty of conscience. The amendment protects, certainly, speech and writing on the conduct of government and other public affairs, and, with hardly any strain, literature and art. When the concept is imported into the sale of goods and services, however, there is an unappealing dissonance. What we are dealing with is commercial puffery—not so much free expression as free private enterprise, which, to the extent the Constitution protects it at all, is the subject of the due process clause, not the First Amendment.

Consider this in one of its specific aspects—advertising by lawyers. The Supreme Court has ruled that the First Amendment requires the profession to give up its self-imposed, traditional, salutary ban. We now have the spectacle of lawyers appearing on television to tell the audience (which of course can ask no questions) how talented and knowledgeable they, the lawyers, are.

The argument is that if law firms advertise, clients will get better, cheaper services. The argument is vapid. There is, to begin with, the general truth (which many who favor the change would themselves assert in other fields) that advertising is often misleading and sometimes downright dishonest. More specifically, though advertising can be informative as to some services and products, it is utterly unsuitable here. The nature of nonrudimentary legal work is such that its quality cannot be appraised except on the basis of intense association. It is a wise client, and a rare one, who knows whether a lawyer is giving him his money’s worth.

As to the political process, ten years ago the Supreme Court held that parts of an Act of Congress that put limits on using money in federal elections violated the First Amendment. The Court thus took the vulgar expression of a deplorable fact—“money talks”—and elevated it to a constitutional principle. This required a contortionist’s skill on the stage of intellect: spending money becomes a form of speech. Moreover, we can hardly suppose that spending money to influence the outcome of elections is what the framers, striving toward a democratic polity, were intent on guaranteeing. From a patriotic point of view, this decision was the worst judicial display since the Court’s rulings that maximum-hour-minimumwage standards violated a newfound constitutional right to profits.

The First Amendment, treated for about a century and a half as a fragile wicker basket that could take no heavy burden, has in the last decade been treated as a garbage van. This is educational and saddening. Educational, because it illustrates the pendulum swings of history, and the dangers of doctrine, and the tendency of doctrinaires to fight past wars. Saddening, because it prepares the way for reaction and puts real freedom in peril.

The law is never altogether self-enforcing. It requires a degree of respect from those it seeks to govern. Videlicet Prohibition. Now that the Court has told us that topless dancing and the purchase of public office are shielded forms of speech, we had better be concerned that the pendulum may start to swing the other way and the fundamental freedoms the First Amendment was meant to secure may be, in time, severely damaged.

-Charles Rembar Attorney. Author of The Law of the Land and The End of Obscenity.

Article Five

The part of our Constitution that most deserves immortality is undeniably Article V. Admittedly one of the least-known and most cumbersome clauses in the document, it involves the process by which Americans can alter or amend their Constitution itself.

The original document, as we know, was written by an elected convention. That the amending of it was relatively easy was proved by the passage of the first ten amendments, the so-called Bill of Rights. Through the years, others have been added: the Fourteenth; the Eighteenth, later repealed; and the Twenty-second, limiting the terms of Presidents. There has been only one Constitution, however, in two hundred years. Now we are only a state or two from a new convention, possibly a real and present danger to the Republic as we know it.

In the distant past, a convention was a solemn forum, the ultimate source of the sovereignty of the American people. Even when the Southern states seceded, they did so not through legislatures but by elected conventions. But through the twentieth century, local and national conventions have been more circuses than deliberative bodies. Massachusetts, for instance, has a so-called constitutional convention every year or so, bearing no more resemblance to the original concept than Jimmy Carter’s “Town Meetings” resembled the New England forums where the aim is only to reach decisions on the problems of town government.

The dangers derive from ignorance, not lack of patriotism. Certainly we have patriots today. Through this century and the last, we have had statesmen who have outshone Presidents under whom they have served: men like Borah of Idaho, Norris of Nebraska, LaFollette of Wisconsin, and the Lodges of Massachusetts; senators like Taft of Ohio, Fulbright of Arkansas, and Russell of Georgia; justices like Marshall, Holmes, Brandeis, Frankfurter, and Warren. But we have no figures such as these who would be sent to a new convention.

The call now is for “a scientific constitution for a scientific age.” Why? Granted, there are constitutional lawyers today, but they are practicing before the Supreme Court. There are great historians and scholars, but they are teaching in the universities. Prominent historians have even charged that our last three Presidents have so little understood the inherent powers of their office under the Constitution that they have spent their first two years “reinventing the wheel.” Richard Nixon is acknowledged to have understood the powers of his office perfectly, but would he be sent to a Constitutional Convention?

Admittedly, two hundred years is a long time between conventions, but the Constitution—as Calhoun recognized—is essentially a document to protect minorities. “Majorities can take care of themselves.” Majority rule is not always the right rule. Democratic government can be run by referenda or public opinion polls. These do not necessarily make for good government.

So now, as we approach the Constitution’s two hundredth anniversary and the possibility of a second Constitutional Convention, we must remember that this simple document has stretched to meet all the terrible tests of the past two hundred years. It has proved itself truly a constitution for all seasons. It is one of the foundation stones of our republic.

So, let us approach it, if not with reverence, in the spirit of what statesmanscholar Daniel Moynihan has called “benign neglect,” and what the mad, brilliant, old Virginian, John Randolph of Roanoke, called for—“masterly inactivity.” Lone may it stand.

I particularly revere the Fifth Amendment for its glorious perversity in taking as its principle that the sanctity of the individual is equal to the power of lawful Authority. In stating that no person “shall be compelled in any criminal case to be a witness against himself,” “the Fifth” insists that a witness (as distinct from an accused person who takes the stand) need not speak out to his own detriment in a court of law. However vexing it may be when invoked by known mobsters, the amendment underscores that Authority in this country cannot be capricious or hasty in the exercise of its power.

-Kathleen Brady Author of Ida Tarbell: Portrait of a Muckraker.

Tenth Amendment

The part of the Constitution that is most important to me is the Tenth Amendment, which makes explicit what is strongly implied in the original text: that the powers delegated to the federal government are all the powers it’s supposed to have. We’ve gone a long way toward making it a dead letter, as the federal government has assumed more and more powers that are clearly contrary to the spirit and structure of the government as outlined in the Constitution. And a dead letter is what the entire document would be if those who proclaim “The Constitution is a living document!” were to have their way completely.

-Alleen S. Kraditor Retired Professor of History, Boston University.

Fourteenth Amendment

I consider the Fourteenth Amendment the most important part of the Constitution, because it defines American citizenship and provides for equal protection of the laws for all Americans, giving the federal courts and Congress the power to define and enforce these rights. There has been more litigation growing out of the Fourteenth Amendment than any other part of the Constitution. And of course most of the civil rights decisions and legislation of the past forty years have been based on the equal protection clause of that amendment. Without the Fourteenth Amendment, the legal status of black Americans might be very different, and the United States would be a different society.

Because the Nineteenth Amendment enfranchised and empowered American women, and because it is the only constitutional amendment to date to grant equal rights without regard to gender, it remains a keystone. For me, personally, professionally, politically, it is central. Suffrage was the goal of Elizabeth Cady Stanton and the starting point for the Equal Rights Amendment. Most of all, suffrage provided the means for women to move into political roles and to improve our society with their participation.

-Elisabeth Griffith Author of In Her Own Right: The Life of Elizabeth Cady Stanton.